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No deal Brexit: more details released on immigration rights, including employment and study

Further details have been released on a new UK immigration category, known as ‘European Temporary Leave to Remain’, that the Government intends to apply to EU/EEA and Swiss citizens who come to the UK after the UK has left the EU, in the event of a no-deal Brexit scenario.

According to information published on 28 January 2019, the Government intends that, in the event of a no-deal Brexit, free movement of EU/EEA and Swiss citizens (who we will refer to as ‘EU citizens’) to the UK will end on the date the UK leaves the EU.

The Immigration and Social Security Co-ordination (EU Withdrawal Bill), which is currently progressing through parliament, sets out the legal mechanism that will end free movement and apply the UK’s immigration system to EU citizens.

The new proposals
In the event of a no-deal Brexit, the Government’s position is that:

Those coming for up to three months: EU citizens will automatically be granted leave to enter for three months upon arrival to the UK and this status will also include permission to work and study. No fee will be payable for this status.

The information released by the Government states that:

‘EU citizens will continue to be able to enter the UK as now, using e-gates when travelling on a biometric passport. They will also be able to enter the UK for short-term visits without a visa.

They will be subject to security checks, as now, but we will apply the UK deportation threshold in the case of criminality and conduct committed after the UK’s exit. They will be automatically granted leave to enter by order, which will mean they can stay for up to three months and will be permitted to work and study, which will mean they can start those activities on arrival.’

Family members who are not EEA citizens: non-EEA close family members of the above EU citizens will have to apply for a family permit before accompanying or joining them in the UK. There is no further information, as yet, on the status such individuals will need to secure once the family permit is due to expire if they wish to remain in the UK.

A close family member is defined as a spouse, a partner or a dependent child under the age of 18.

European Temporary Leave to Remain: EU citizens who come to the UK and wish to stay for more than three months will need to make an application for a status called European Temporary Leave to Remain.

According to the information currently available, European Temporary Leave to Remain will be granted for 36 months and will be non-extendable. The application will be made via an online system and applicants will be required to prove their identity and declare any criminal convictions.

The Government has stated that a fee will be payable for this status, the details of which are to be published in due course.

Those wishing to remain in the UK beyond 36 months will need to make an application under the future immigration system which is planned to come into effect in 2021.

Employer, education provider and landlord checks
In relation to civil penalties and compliance checks, the Government has stated:

‘Until all resident EU citizens and their family members who are eligible for the EU Settlement Scheme have had a reasonable opportunity to apply for and be granted status, which will be by the end of December 2020, we will not ask employers or other third parties, such as landlords, to start distinguishing between EU citizens who were resident before exit and post-exit arrivals.

Once the new border and immigration system is introduced from 2021, employers and others will need to check EU citizens’ status using the Home Office’s Digital Status Checker, but not retrospectively. Until 2021, EU citizens will continue to be able to evidence their rights to work and to rent property using a passport or national identity card, and non-EU family members will use a biometric residence document.’

Civil penalties and criminal offences relating to illegal working in the UKThe Government has stated that it will not ask employers ‘to start distinguishing between EU citizens who were resident before exit and post-exit arrivals’.

At the moment, employers cannot be liable for a civil penalty at all under section 15 of the Immigration Asylum Nationality Act 2006 if they employ an EU citizen. This is regardless of whether or not they have carried out checks in accordance with the prevention of illegal working guidance. The reason for this is that this piece of legislation only currently applies to those who require immigration permission to work in the UK. Currently EU citizens have a right to work under EU law and do not therefore require permission.

The information published by the Government does not say that the civil penalty regime will not apply in relation to EU citizens in the event of a no-deal Brexit. It says that employers will not be expected to distinguish between new arrivals and pre-Brexit EU residents.

Is it therefore possible that the Government’s intention is that, in order to benefit from protection against civil penalties, employers will have to carry out checks in accordance with the prevention of illegal working guidance and retain a copy of EU employees’ passports or identity documents? Alternatively, is the Government’s intention that regardless of whether or not checks have been carried out, the civil penalty regime will not be applied in relation to anyone who is an EU citizen?

It is also a criminal offence under section 21 of the Immigration Asylum Nationality Act 2006 for an employer to employ a person who requires, but does not have, permission to work if the employer knows, or has reasonable causes to believe, this.

It is a criminal offence under section 24(B) of the Immigration Act 1971 for a person who is subject to immigration control to work in the UK without permission.

According to the information currently available, if an EU citizen arrived in the UK and stayed for more than three months, but did not apply for European Temporary Leave to Remain, both they and their employer would be at risk of committing a criminal offence unless changes are made to the relevant UK legislation (once this becomes applicable to EU citizens).

Further clarity is needed urgently on these points.

EU Citizens who are resident in the UK before Brexit: the EU Settlement SchemeEU/EEA citizens who are resident in the UK before the UK leaves the EU, including their non-EEA family members, will be entitled to remain and will need to make an application under the EU Settlement Scheme.

Information on the Government’s proposals concerning when such applications should be made in the event of a no-deal Brexit can be found here.

Further informationYou can keep up to date on Brexit immigration developments here.